india and the rights of indigenous peoples: constitutional, legislative and administrative...

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India and the Rights of Indigenous PeoplesConstitutional, Legislative and Administrative Provisions Concerning Indigenous and Tribal Peoples inIndia and their Relation to International Law on Indigenous Peoples.

C.R Bijoy, Shankar Gopalakrishnan and Shomona Khanna


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INDIA AND THE RIGHTS OF INDIGENOUS PEOPLESConstitutional, Legislative and Administrative Provisions Concerning Indigenous and TribalPeoples in India and their Relation to International Law on Indigenous Peoples.

Copyright @ Asia Indigenous Peoples Pact (AIPP) Foundation, 2010 All rights reserved.No part of this book may be reproduced in any form without the written permission of the copyrightholder.

Editor: Ms. Luchie Maranan

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is publication has been produced with the support of PRO 169 of e International LabourOrganisation (ILO), Geneva and financed by the European Commission’s, European Initiative forDemocracy and Human Rights (EIDHR) and the Danish Ministry of Foreign Affairs (Danida).

Disclaimer:e views expressed in this publication are those of the authors and does not necessarily reflect

the position of AIPP.ILO Cataloguing in Publication Data e designations employed in ILO publications, which are in conformity with United Nations practice, andthe presentation of material therein do not imply the expression of any opinion whatsoever on the part of theInternational Labour Office concerning the legal status of any country, area or territory or of its authorities, orconcerning the delimitation of its frontiers.e responsibility for opinions expressed in signed articles, studies and other contributions rests solely with theirauthors, and publication does not constitute an endorsement by the International Labour Office of the opinionsexpressed in them.Reference to names of firms and commercial products and processes does not imply their endorsement by theInternational Labour Office, and any failure to mention a particular firm, commercial product or process is not asign of disapproval. ILO publications and electronic products can be obtained through major booksellers or ILO

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Contents

ACKNOWLEDGEMENTS 7Abbreviations Glossary 8Foreword 9Executive Summary 10

I: Introduction to India’s indigenous peoples, and its legal system1. Indigenous peoples in India 13

1.1 Basic Situational overview 13

1.1.1 e Category of Scheduled Tribes 142. Brief History 16

2.1 Pre-colonial and Colonial history 16

BOX 1: Some important revolts during the colonial period 17

2.2 Post-colonial history 183. Status of Scheduled Tribes 20

3.1 Current Status 20

TABLE 1: Percentage of Scheduled Tribe population in districts, villages, and Urban Areas / Towns 21

TABLE 2: Status of Scheduled Tribes with respect to the general population: Some indicators 24

3.2 Main human rights concerns 25

3.3 Role of media and civil society 284.Legal and Policy Frameworks: 30

4.1 Introduction to legal / legislative system and its basic principles 30

4.1.1 Sources of law 30

4.1.2 e Court Structure 30

4.1.3 Nyaya Panchayats 31

4.1.4 Human Rights Courts 31

4.1.5 Customary dispute settlement mechanisms 324.2 Constitutional Safeguards 33

TABLE: 3 Constitutional provisions relevant to Scheduled Tribes 33

4.3 Legislative Safeguards 34

TABLE 4: Legislative safeguards for Scheduled Tribes 34

4.4 Key Institutional Structures Relating to Scheduled Tribes 36

4.4.1 Central Government 36

4.4.2 State Governments 39

4.5 National human rights institutions 39

4.6 Scheduled Areas, Tribal Areas and Tribal States 43

4.6.1. Constitutional Arrangements for Scheduled Areas 43

4.6.2. e Northeastern States 45TABLE 5: Administrative Structure of Northeastern States 47

4.6.3 Andaman and Nicobar Islands 49

4.7 Status of international law 49

4.7.1 Ratification of UN, ILO and regional instruments 52

TABLE 6: Status of ratification/accession of important international instruments 52

4.7.2 Status of communications and state reporting 53

II: Legal protection of indigenous peoples in India1. Recognition and identification 572. Non-discrimination 623. Self-management 67

3.1 Participation and consultation 734. Access to justice 765. Culture and language rights 80

TABLE: 7 Distribution of ST population by Religion 83


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6. Education 857. Land, natural resources and environment 888. Socio-economic rights 1039. Gender equality 10510. Indigenous children 10811. Indigenous peoples in border areas 112

III: Conclusion and recommendations

CASE STUDIES

I: The Indian Constitution, Law and the Nagas: A case study of Nagaland1. Background 121

1.1 Historical 121

1.1.1 Under British Colonial Subjugation 122

1.1.2 Indian independence and after: In Search of Justice 124

1.2 Traditional council system 1251.3 Creation of Nagaland State 126

1.3.1 Implication of Article 371A 128

1.3 e state 129

TABLE 1: District and tribes in Nagaland 1302. Legal Status 130

2.1 Recognition and identification 130

2.2 Non-discrimination 131

2.3. Self-management, Participation and consultation 132

2.3.1 Nagaland Village and Area Council Act, 1978 132

2.3.2 Village Development Model Rules 1980 132

2.3.3 Nagaland Communitisation of Public Institutions and Services Act 2002 133

TABLE 2: Exracts from VEC Speaks 134

2.3.4 Consultation on Biological Diversity Rule 134

2.4. Access to justice 134

2.4.1 District Customary Court 135

2.4.2 Human rights 135

2.5. Culture and language rights 137

2.5.1 Youth Centre: the house of learning 137

2.6. Education 138

2.6.1 Community ownership of schools 138

2.6.2 Medium of Instruction 138

2.7. Land, natural resources and environment 139

2.7.1 Land Ownership System 1402.7.2 Laws and Regulations 140

1.1.1 Status of Nagaland Forest as of 31 January 2001 142

TABLE 3: Statistics of Forest 143

TABLE 4: Reserved Forests 143

TABLE 5: Wildlife Sanctuaries and National Park 143

TABLE 6: Protected Forest 143

2.8. Socio-economic rights 144

2.9. Gender equality 145

2.9.1 Governance and women 146

2.9.2 Violence against women 147

2.9.3 Health 147

2.9.4 Land rights 147

2.10 Indigenous children 148

2.11. Indigenous peoples in border areas 148


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3. Conclusion 150II: The Indian Constitution, Law and the Adivasis: A case study of Jharkhand 1531. Background 153

1.1 Historical 153

1.1.1 Pre-colonial Period 1531.1.2 Under British Colonial Subjugation 155

BOX 1: Major Revolts 156

BOX 2: e British Response 156

1.1.3 Indian independence and after: In Search of Justice 157

1.2. e state 159

TABLE 1: District-wise Scheduled Tribes Population in Jharkhand 160

1.2.1 Current Status 161

TABLE 2: Scheduled Area Districts and Population in Jharkhand 161

1.2.2 Socio-economic status 162

TABLE 3: Health Status of Jharkhand 163

1.2.3 Main human rights concerns 165

1.2.4 Militarization and State Repression 1661.2.4 Role of media and civil society 168

2. Legal Status 168

2.1 Non-discrimination 168

2.2 Self-management, Participation and consultation 169

2.3. Access to justice 171

2.4. Culture and language rights 173

2.4.1 Cultural Rights 173

2.4.2 Language Rights 174

2.5. Education 175

TABLE 4: Levels of Education among the major Scheduled Tribes 176

2.6. Land, natural resources and environment 1772.6.1 Forest 177

2.6.2 Mining 179

2.6.3 Displacement and resource alienation 1813. Conclusion 183

Annexure 1: List of notifications issued by the President identifying certain communities as

Scheduled Tribes at different times. 184

Annexure 2: List of Approved Primitive Tribal Groups 185

Annexure 3: Scheduled Tribe Population in India (2001) 187

Annexure 4: List of notified Scheduled Tribes 188

Annexure 5: Scheduled Tribes and the State/ Union Territory where they are scheduled 200

Annexure 6: 75 Districts having more than 50% of Scheduled Tribe Population (2001) 217

Annexure 7: State-wise List of Scheduled Areas 221 Annexure 8: List of ILO Conventions Ratified by India 246

Annexure 9: Administration of Scheduled Areas and Tribal Areas 247

Annexure 10: Legislations for Protection of Tribal Land 265

Annexure 11: PESA,1996 267

Annexure 12: THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST

DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006 (ACT NO. 2 OF 2007) 269


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Ancestor statue (Garo, Meghalaya) Photo: Chris Erni


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INDIA AND THE RIGHTS OF INDIGENOUS PEOPLES.

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Abbreviations Glossary ADM Additional District Magistrate AFSPA e Armed Forces (Special Powers) Act, 1958

ANPATR Andaman and Nicobar Protection of Aboriginal Tribes Regulation AP Andhra PradeshC ConventionCAT Convention against TortureCEDAW Convention on the Elimination of Discrimination against WomenCERD Convention on the Elimination of Racial DiscriminationCMW Convention on Migrant WorkersCPI Communist Party of India CRC Committee on the Rights of the ChildDPSP Directive Principles of State Policy ICCPR International Covenant on Civil and Political RightsICECSR International Covenant on Economic, Social and Cultural RightsIDA Iron Deficiency Anemia ILO International Labour OrganisationITDP Integrated Tribal Development Project

JFM Joint Forest ManagementLAMPS Large Area Multipurpose SocietiesMADA Modified Area Development ApproachNCST National Commission for Scheduled TribesNGO Non-Government OrganisationNHRC National Human Rights Commission

NHRC National Human Rights CommissionNPE National Policy on EducationNSTFDC National Scheduled Tribes Finance and Development CorporationNTFP Non-Timber Forest ProductsOBC Other Backward ClassOBCs Other Backward ClassesPESA Panchayat Raj (Extension to Scheduled Areas) ActPHR Protection of Human RightsPIL Public Interest LitigationRGI Registrar General of India

SC Scheduled CasteSCs Scheduled CastesSHRC State Human Rights CommissionST Scheduled TribeSTs Scheduled TribesTRIFED Tribal Cooperative Marketing Development FederationTSP Tribal Sub PlanUN United NationsUNDRIP UN Declaration on the Rights of Indigenous PeoplesUT Union Territory

WGIP Working Group on Indigenous Populations


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Constitutional, Legislative and Administrative Provisions Concerning Indigenous and Tribal Peoples in India and their Relation toInternational Law on Indigenous Peoples.

Forewordis study forms part of an Asia-wide research initiative by ILO and AIPP which seeks to

examine the extent to which the legal frameworks of key Asian countries impact on, and protect

the rights of, indigenous and tribal peoples. It is hoped that this work, in addition to increasingawareness on this important issue, will contribute in the long run to the development andimplementation of enabling policy and legal frameworks for the protection of the rights of thesegroups, who remain among the most marginalised and vulnerable in all countries where they live.

e Indigenous and Tribal Peoples Convention (ILO Convention No. 169) was adoptedby the International Labour Organisation (ILO) in 1989. e Convention is currently ratifiedby 22 countries and revised an earlier version, Convention No. 107 on Indigenous and TribalPopulations, 1957, which is no longer open for ratification. In 2007, the United Nations General

Assembly adopted the UN Declaration on the Rights of Indigenous Peoples (A/REAS/61/295).e adoption was the culmination of years of discussions and negotiations between governmentsand indigenous peoples from across the world. It is thus a landmark achievement, which providesthe global community with a common framework for the realization of the rights of indigenousand tribal peoples. Convention No. 169 and the UN Declaration are compatible and mutuallyreinforcing.

e need for undertaking this research is premised on that fact that the rights guaranteedin ILO Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples willnot be meaningful unless they are actually guaranteed and implemented in the domestic legalframework. In this regard, the situation in India provides a particularly interesting case study.

While Asia has the highest concentration of indigenous and tribal peoples in the world more than200 million, India alone accounts for over 84 million of them. Despite large diversity betweenand within indigenous peoples in India, as a social group they remain at the bottom of most

socio-economic statistics. Although India voted in favour of the adoption of the UN Declarationon the Rights of Indigenous Peoples and is also one of the seventeen countries for whom theearlier ILO Convention No.107 remains in force it has yet to ratify ILO Convention No. 169on Indigenous and Tribal Peoples. However, unlike many other countries in Asia, India has ahighly developed legal and policy frameworks in place for its indigenous and tribal communities,known as ‘Scheduled Tribes’.1 Despite this fact, implementation of these legislative and policyprescriptions remains a major challenge, with the result that Scheduled Tribes are still one of themost excluded groups in India.

Experience from accross the world has shown that sustained denial of indigenous peoplesrights leads to conflict and instabilty, which impacts severly on national development. India is

no different. Concrete and sincere measures, as well as new approaches, are needed in order touphold the social, cultural, economic and political integrity of India’s Scheduled Tribes and toprevent their further alientation from the state. Such action would also go a long way in terms ofensuring equitable and sustainable development for the nation as a whole.

Asia Indigenous Peoples Pact PRO 169 Chiang Mai, Tailand International Labour Organisation (ILO), Geneva

1 Most signicant examples include; the 5th and 6th Schedule of the Constitution of India; The Panchayat Extension to

Scheduled Areas Act (PESA), The Scheduled Tribe and Other Traditional Forest Dwellers Recognition of Forest Rights Act,

2007 and an extensive reservation system for Scheduled (Castes) and Tribes. It also has a separate Ministry of Tribal Affairs

to coordinate work on Scheduled Tribes.


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Executive SummaryIndia is home to the largest population of indigenous peoples of any country in the world.

Roughly a quarter of the world’s indigenous population – around 80 million people – are

scattered across India, their numbers a staggering diversity of ethnicities, cultures and socio-economic situations. ey range from some of the last uncontacted indigenous communitiesin the world, like the Sentinelese of the Andamans, to some of the largest, such as the Gondsand Santhals of central India. ey include not only communities who live under conditions ofextreme destitution, but also communities with social indicators well above the national average.But across circumstances and areas, like other indigenous communities around the world, India’sindigenous peoples do share one characteristic – social, political and economic marginalisation.

In recognition of this fact and reflecting more than a century and a half of continuous strugglesby indigenous people, India has a panoply of laws, policies and Constitutional provisions aimedat protecting the rights of such communities. Yet India is also distinguished by the extremereluctance of the government to acknowledge or accept the international framework for suchprotections, embodied primarily in International Labor Organization (ILO) Convention No.169 on Indigenous and Tribal Peoples, 1989 and the United Nations Declaration on the Rightsof Indigenous Peoples (UNDRIP), 2007. While India is a signatory to ILO Convention No.107 on Indigenous and Tribal Populations (the predecessor to Convention 169) and voted infavour of the UNDRIP, it has adamantly insisted that its own indigenous peoples cannot claimstatus or protection under these laws. e government rejects the very term ‘indigenous peoples’,insisting that all Indians are indigenous, and is particularly hostile to any reference to the rightsof indigenous people to autonomy, self-governance or self-determination. is is despite the factthat India’s own laws provide for varying degrees of such protection - in some cases, far reaching- to certain communities.

is report examines the Indian policy and legal framework on indigenous peoples’ rightsthrough the lens of the values and spirit of international law on the subject. Part I of thereport describes the social and political situation of indigenous communities in India, whilePart II examines the policy and legal framework on specific areas of indigenous peoples’ rights.e report is primarily focused on the extent to which the Indian political and legal situationconforms to the principles of equity, self-governance and justice that underlie the internationalinstruments.We find that on all three fronts, India falls far short of international standards onindigenous peoples’ rights. e seemingly impressive range of legal and policy instruments thatexists in Indian law for indigenous peoples’ rights is vitiated by one fundamental flaw – theIndian state’s reluctance to respect the political rights of indigenous peoples and the subsequent

widespread violations of these.


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Garo women (Meghalaya) Photo: Chris Erni


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Jharkhand Photo: Chris Erni


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I: Introduction to India’s indigenous peoples, andits legal system

1. Indigenous peoples in India

1.1 Basic Situational overview

e Government of India officially does not consider any specific section of its populationas ‘indigenous peoples’ as generally understood and implied in its usage in the UN. Rather, thegovernment claims all its peoples as indigenous. However, operationally in many of its dealings,those sections of people declared as falling within the administrative category of ‘ScheduledTribes’ (STs) are considered as indigenous peoples. ough STs are not coterminous with eitherthe socially and historically accepted term ‘Adivasi’ (meaning indigenous or original people) or‘tribal’, by and large it is accepted that the STs include mostly ‘indigenous peoples’’ in the Indiancontext. is ‘indigenousness’ is also recognized as distinct and different from ‘regionalism’ andfinds clear and distinct expression in the constitution and laws. While recognizing that not allindigenous peoples are STs and vice versa, this study will focus on STs.

A neat classification of an ST as a homogenous social-cultural category is not possible. Neitherhas it been possible to arrive at a clear anthropological definition of a ‘tribal’ in terms of ethnicity,race, language, modes of livelihood or social forms. e tribal communities are divided intoVeddids, similar to the Australian aborigines; Paleamongoloid Austro-Asiatic from the northeast;the Greco-Indians who spread across Gujarat, Rajasthan and Pakistan from Central Asia and theNegrito group of the Andaman Islands - the Great Andamanese, the Onge, the Jarawa and the

Sentinelese.e STs inhabit about 15-20% of the land area of the Indian sub-continent in largely

contiguous areas. In the mid-Indian region, the Gond who number over 5 million, are thedescendants of the dark skinned Kolarian or Dravidian tribes and speak dialects of the Austriclanguage family, as are the Santhal who number 4 million. e Negrito and Austroloid peoplebelong to the Mundari family of Munda, Santhal, Ho, Ashur, Kharia, Paniya, Saora etc. eDravidian groups include the Gond, Oraon, Khond, Malto, Bhil, Mina, Garasia, Pradhan etc.and speak Austric or the Dravidian family of languages. e Gujjar and Bakarwal descend fromthe Greco Indians and are interrelated with the Gujjar of Gujarat and the tribes settled aroundGujranwala in Pakistan. ere are some 200 indigenous peoples in the northeast. e Boro,

Khasi, Jantia, Naga, Garo, Tripiri, Mikir, Apatani, Boro, Khasi, Kuki, Karbi etc. belong to theMongoloid stock and speak languages of the Tibeto-Burman language groups and the MonKhmer. e Adi, Aka, Apatani, Dafla, Gallong, Khamti, Monpa, Nocte, Sherdukpen, Singpho,Tangsa, Wancho, etc. of Arunachal Pradesh and the Garo of Meghalaya are of Tibeto-Burmanstock while the Khasi of Meghalaya belong to the Mon Khmer group. In the southern region, theIrula, Paniya, Adiya, Sholaga, Kurumba etc. belong to the proto-Australoid racial stock speakingdialects of the Dravidian family. ere are also STs in Uttar Pradesh, Himachal Pradesh, WestBengal, Arunachal Pradesh, Sikkim, Nagaland, Manipur and Mizoram, whose communitiesextend across the international border in China (including Tibet), Bhutan, Myanmar andBangladesh.2

2 The Adivasis of India - A History of Discrimination, Conict and Resistance, Indigenous Affairs, International Work

Group for Indigenous Affairs,1/01, March 2001, pp.54-6. Available at http://www.iwgia.org/graphics/Synkron-Library/

Documents/publications/Downloadpublications/IndigenousAffairs/IAracism.pdf


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1.1.1 The Category of Scheduled Tribes

‘Scheduled ribe’ is an administrative term used for the purpose of ‘administering’ certainspecific constitutional privileges, protection and benefits for specific section of peoples, historically

considered disadvantaged and backward. Article 366 (25) of the Constitution of India definesScheduled Tribes as ‘such tribes or tribal communities or parts of, or groups within such tribes,or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes ofthis Constitution’. e Scheduled Tribe status confers on the tribe, or part of it, a Constitutionalstatus invoking the safeguards provided for in the Constitution in their respective states/UTs.e Scheduled Tribe status is conferred on the basis of birth to a person into a Scheduled Tribe.

According to Clause 1 of Article 342, the Scheduled Tribes are the tribes or tribal communitiesor part of or groups within these tribes and tribal communities which have been declared assuch by the President of India through a public notification (See Annexure 1 for the list ofnotifications). us, the President notifies the Scheduled Tribes in relation to a particular state/Union Territory (UT), and not on an all India basis, by an order after consultation with the State

Governments concerned. ese orders can be modified subsequently, to include or exclude, butonly through an Act of Parliament under Clause 2 of the Article.

Although no well-defined criteria have been developed for the purpose, the general official3 refrain has been that the identification of Scheduled Tribe (ST) is done on the basis of thefollowing characteristics:-

(i) primitive traits;(ii) distinctive culture;(iii) geographical isolation;(iv) shyness of contact with the community at large; and

(v) backwardness.ough these criteria are not spelt out in the Constitution, these have become accepted in

practice and are based on the 1931 census; the reports of the first Backward Classes Commission(Kalelkar) 1955; the Advisory Committee on Revision of SC/ ST lists (Lokur Committee) 1965and the Joint Committee of Parliament on the Scheduled Castes and Scheduled Tribes Orders(Amendment) Bill 1967 and (Chanda Committee) 1969. Members of STs who migrate from anarea where the community is scheduled to another area within the same state retain the status ofST. However, if the person migrates to another state, she/he cannot claim the ST status in thatstate.

In June 1999, the government revised its modalities for deciding claims for inclusion in, or

exclusion from, the lists of STs. e claims for inclusion in the STs list have to be first approvedby the concerned State/UT Government and sent to the Registrar General of India (RGI). eRGI, if satisfied with the recommendation of the State Government, recommends the proposalto the Central Government who then refers the proposal to the National Commission for STsfor their recommendation. e Cabinet then takes a decision and introduces the proposal in theform of a Bill to amend the Presidential Order for inclusion or exclusion as the case may be.

Certain groups that were identified4 for the first time in 1975-76 and thereafter in 1993-94, were regarded as the most marginalised amongst the STs. ese were included in a new categorycalled Primitive Tribal Groups (PTGs) for the purpose of administering special schemes to them.

3 See the essential characteristics listed by the Ministry of Tribal Affairs available at http://tribal.gov.in/index2.asp?sublinkid=542&langid=1

4 Development of Primitive Tribal Groups, Twenty-Eighth Report, Standing Committee on Labour and Welfare (2002),

Thirteenth Lok Sabha, Lok Sabha Secretariat, New Delhi 2002. Accessible at http://164.100.24.208/ls/CommitteeR/

Labour&Wel/33.pdf


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e criteria fixed for identification of such PTGs are:-

(i) pre-agricultural level of technology;(ii) very low level of literacy; and

(iii) declining or stagnant population.

In all, 75 tribal communities (See Annexure 2 for the list with population figures) wereidentified as PTGs spread over 17 states and one UT.

Denotified TribesIn addition to STs, there is yet another category of communities that are also referred

to by the term ‘tribal’. ese are the denotified tribes (DNTs). ese communities wereoriginally listed under the Criminal Tribes Act of 18715 as Criminal Tribes and were said tobe ‘addicted to the systematic commission of non-bailable offences’. Once a tribe became‘notified’ as criminal, all its members were required to register with the local magistrate,failing which they would be charged with a crime under the Indian Penal Code. e CriminalTribes Act of 1952 repealed the notification, i.e. ‘de-notified’ the tribal communities6. is

Act, however, was replaced by a series of Habitual Offenders Acts that asked police toinvestigate a suspect’s criminal tendencies and whether his occupation is ‘conducive tosettled way of life.’ e denotified tribes were reclassified as habitual offenders in 1959.7

According to the Eleventh Five Year Plan, ‘Unfortunately, these groups still continueto be marginalized and their specific needs even today are neither adequately understoodnor catered to.8 A report by the National Commission for De-notified Tribes, NomadicTribes and Semi-Nomadic Tribes subsequently stated that there are roughly 110 milliondenotified, nomadic and semi-nomadic tribes9 and that these communities are typically

reduced to landlessness and face systematic violence and discrimination by mainstreamsociety.

e use of the term “tribe” for the DNTs did not however necessarily imply thatthese communities were Adivasis. e British may have used this term for many non-

Adivasi communities merely in order to imply a ‘primitive’ or ‘savage’ disposition, inkeeping with the racist assumptions of the Criminal Tribes Act. In the present day, someDNTs are categorised as STs, while others are categorised as Scheduled Castes (the formeruntouchables), and Other Backward Castes (OBC) while some are not included in anyspecific category. e communities covered under this rubric include mostly landlessand itinerant nomadic communities who performed various service and entertainment

functions for mainstream society. Since there is some question as to whether all DNTs canbe considered indigenous peoples in the international law sense, this report focuses on STsand does not discuss DNT issues in depth.

5 The Act was subsequent ly amended in 1897, 1911, 1923, 1924 and 1947.

6 This followed the recommendation of the All India Criminal Tribes Enquiry Committee of 1949.

7 Denotied tribes of India, From Wikipedia, the free encyclopedia. Accessible at http://en.wikipedia.org/wiki/Denotied_tribes_of_India#Call_for_repeal

8 Eleventh Five Year Plan 2007-12, op cit, p.1

9 Though there are no scientically valid estimates, the First ve-year Plan of the Government of India placed 198

criminal tribes estimated to be more than 4 million.


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BOX 1: Some important revolts during the colonial period

• Kolis of Maharashtra (1784-85)• Tamar of Chota Nagpur in present-day Jharkhand (1789, 1794-1795, 1801)

• Mundas of Jharkhand (1791, 1819-1820, 1832, 1867, 1889)• Chuari Movement in Bihar (1795-1800)• Bhumij Rebellion of Manbhum in Jharkhand (1798, 1834)• Koyas in Andhra Pradesh (1803, 1862, 1879, 1880, 1822)• Tribal revolts in Chotanagpur of Jharkhand (1807- 1808, 1811, 1817, 1820)• Bhils in Western India (1809-1828, 1846, 1857-1858)• Kols in Chotanagpur (1818, 1832-1833)• Singphos in Assam (1825, 1828, 1843, 1849, 1869)• Mishmis in Arunachal Pradesh (1827, 1855)• Tribals of Assam (1828)

• Khasis of Assam and present day Meghalaya (1829)• Kherwar uprising in Jharkhand (1832-1823)• Lushais of Assam (1834-1841, 1842, 1850, 1860, 1871-1872, 1892)• Daflas of Assam (1835, 1872- 1873)• Naiks of Gujarat (1838, 1868)• Khampti in Assam (1839-1843)• Gonds of Bastar in Chhattisgarh (1842)• Kondhs in Odisha (1850)• North Kachari hills of Assam (1854)• Santals in Jharkhand (1855, 1869-1870)• Naikdas in Gujarat (1858)• Syntengs of the Jaintia Hills of Meghalaya (1860-1862)• Phulaguri uprising in Assam (1861)• Juangs in Odisha (1861)• Sentinel Islanders in the Andaman Islands (1867, 1883)• Raig-mels of Assam (1868-1869)• Sardari Andolan of Chotanagpur in Jharkhand (1875 – 1895)• Nagas of Nagaland (1879, 1932, 1963-1971)• Bastar tribal uprising in Chhattisgarh (1811)• Birsa Movement in Jharkhand (1895–1900)• Tana Bhagat rebellion in Jharkhand (1912-1914, 1920, 1921)

• Gond and Kolam revolt in Andhra Pradesh (1941)• Koraput revolt in Odisha (1942)• Revolts against the Japanese occupation army by the tribes of the Andaman Islands

(1942-1945)

e resistance forced the colonizers to sue for peace through various arrangements enactedthrough special laws for tribal communities that in effect continued to acknowledge and permitthe relative independent existence of the Adivasi regions. Most of these institutional and legalarrangements withdrew the application of colonial laws partially or fully in some areas. us,Regulation XIII of 1833 declared the central Indian region of Chotanagpur a non-regulated area.

e first major measure taken to deal with the Adivasi areas as a category was the ScheduledDistricts Act of 1874 (14 of 1874) envisaging these areas to be outside the jurisdiction of thenormal administration of the British. e Act enabled the executive to exclude or extend any


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laws in force in any part of British India to a ‘scheduled district’11 while also providing anynecessary protection. e local governments were empowered with prior permission of theGovernor-General to exclude these districts from the operation of laws made for the province.

An exhaustive list of such districts was provided as an appendix to the Act, and these were then

described as ’Scheduled Districts’.The administration of these ‘backward areas’ was also addressed by the Montague-

Chelmsford Report of 1918. The report recommended that the areas where such peoples

lived should be demarcated and excluded from the application of the normal laws of the province. These recommendations were incorporated into the Government of India Act 1919,

empowering the Governor-General in Council to declare any territory in British India to be a

backward tract and to direct that any act or any part of any Act shall not apply or shall apply

to such territories with specied exceptions or modications. The Government of India Act of

1935 empowered the Governor-General in Council through special provisions (Sections 91-

92) to declare any area as excluded or partially excluded continuing the earlier arrangement.

However, these legislations did not apply to’ tribes’, which was not a legally dened term, but to areas inhabited by such peoples.

Subsequently, for the rst time, a provision was made for some representation for the

backward tribes in the provincial legislatures. The British had categorised them as ‘backward

classes’ until 1937 and were scheduled as tribes under the Government of India Act of 1935.

In 1936, all the provinces except for Punjab and Bengal were notied in a list of backward

tribes.

2.2 Post-colonial history

e British Crown’s dominion in India consisted of four political arrangements:

1. Presidency Areas where the Crown was supreme,2. Residency Areas where the British Crown was present through the Resident and the

Ruler of the realm was subservient to the Crown,3. Agency (Tribal) areas or the partially excluded areas where the Agent governed in the

name of the Crown, but left the local self-governing institutions untouched,4. Excluded Areas (northeast) where the representatives of the Crown were a figure head.e Union of India was constituted around the Presidency Areas. After the transfer of power,

the rulers of the Residency Areas signed the ‘Deed of Accession’ on behalf of the ruled and inexchange they were offered Privy Purse12. No deed was however signed with the independent

Adivasi states and they were assumed to have joined the Union. ere was resistance in some

areas, leading to armed conflict in the northeast, particularly the Nagas (1947- present) andMizos (1966-1986).However, the erstwhile colonial arrangement of governance was carried over into the Indian

Constitution in the form of Article 244 – the V Schedule and VI Schedule. e partiallyexcluded and excluded areas were, by and large, brought under the V and VI Schedule. eterm ‘Scheduled Tribes’ was adopted in the Constitution along with certain special privileges,protection and benefits.

ese protections notwithstanding, the post-independence era was marked by intensifyingstate attacks on the resource and livelihood base of these communities. e first such attack wasthrough the mechanism of the forest laws which under British rule largely did not extend to theexcluded and partially excluded areas. Further, the vast areas under the control of the princely

11 Rao, B.S., The Framing of India’s Constitution , New Delhi, Indian Institute of Public Administration, 1968, p. 569.

12 A payment made to the royal families of erstwhile princely states as part of their agreements to rst integrate with India

in 1947, and later to merge their states in 1949 whereby they lost all ruling rights.


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states (the Residency Areas) had their own forest laws, which were frequently modeled afterthe British, but often incorporated their own systems of rights. After independence, with theaccession of the princely states to the Union and the amalgamation of the excluded and partiallyexcluded areas, British forest laws were — often quite literally by the stroke of a pen — extended

to most of these regions overnight. Forests in the princely states were converted into governmentreserves and protected forests without any process of recording the rights of Adivasis and dwellersin these forests. e result was the overnight expropriation of vast territories that in fact belongedto indigenous communities thus causing much resentment and continuing revolts such as the

Warli revolt of Maharashtra (1956-1958). (For more on the forest laws, see the discussion under‘forests’ in Section 7. ‘Land, natural resources and environment’ of Part II).

e expropriation of the forests also reflected the fact that many Adivasi communities stillpracticed communal and territorial forms of land ownership that were not compatible withprivate property regimes recognized by the state. A large proportion of these communities wereoriginally shifting cultivators (and many continue to be so), but the postcolonial Indian state

continued the British policy of viewing such cultivation as a threat and attempted to forcibly‘settle’ these cultivators. Moreover, in light of these communal forms of resource ownership,

Adivasis often did not benefit from the process of land reform initiated after Independence. Infact many of them actually suffered further loss of resources, as common lands were divided anddistributed or Adivasi lands were recorded in the names of others. Lands over which Adivasis didhave recorded ownership were also subjected further to a process of alienation.

Politically, despite their insignificant numbers, the Adivasis have been able to continueresistance intermittently. eir political formations have however been restricted to regions thatare Adivasi dominated, as in the northeast region or have a substantial Adivasi population, as in

Jharkhand. Any sustained attempt to create political formations at the national level has been

virtually absent. However, there have been successful brief attempts by local Adivasi organizationsto come together at the national level on an issue basis and obtain results, such as the movementsfor self-rule and forest rights. In the northeast, various tribal student unions have attempted toform an umbrella organisation.

Traditionally the Adivasis in the mainland have been supporters of the Congress. However, thebreakdown of the Congress party’s ‘umbrella’ political formation in the 1970s and the subsequentrise of new political parties, in which Dalits, backward castes and regional ethnic communitiescreated their own formations, largely left the Adivasis untouched. In most states their allegianceto political parties are seen to be shifting with the hope that one or other will attempt to addresstheir aspirations.

e continued struggles, mostly around increasing alienation from their livelihood resources,

have spread throughout the Adivasi belt. With the spread of intense disaffection during the 1970’s,radical political formations began to grow among Adivasis - armed leftist guerilla movementsand the “people’s movements” that mobilised people but did not join electoral politics, andmore recently, the fascist organisations of the far right. us, Adivasi areas have been the site ofincreasing political ferment for the past four decades.

With the expansion of people’s movements, some of which took the form of armed rebellionamong the Adivasis of central India in the 1980’s, certain policy changes began to take place. In1996 the Panchayats (Extension to Scheduled Areas) Act (PESA) was passed, the provisions of

which are described below. Subsequently, Indian forest laws also began undergoing a slow processof change in order to respond to people’s rights issues. is process is described in the discussion

on ‘forests’ in Section 7,’Land, natural resources and environment’ of Part II below.e Northeastern part of the country is once again an exception to these general trends (see

section 4.6.2. e Northeastern States below).


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3. Status of Scheduled Tribes

3.1 Current Status

e ST population is estimated to be 84,326,240 or 8.2% (2001) of the total populationof the country (See Annexure 3 for region and state-wise population and number of STs). Assuch, India, more than any other country is home to over a quarter of all indigenous peoplesin the world.13 Of the 28 states and seven Union Territories (UTs), STs are notified in all thestates except Punjab, Chandigarh, Haryana, Delhi, and Pondicherry, though they are not evenlydistributed among the remaining states. Of the 5,653 distinct communities in India, around 700communities are notified as ST (See Annexure 4 for state and UT wise list of STs). Odisha hasthe distinction of having the largest number of notified ST communities among the states.

More than half the STs inhabit the central or the mid-Indian region and they form theoverwhelming majority of the population in some of the Northeastern states. e proportion

of STs to the total population in states/UTs was highest in Mizoram (94.5%) and Lakshadweep(94.5%) followed by Nagaland (89.1%) and Meghalaya (85.9%). Among major states,Chhattisgarh (31.8%) had the highest percentage followed by Jharkhand (26.3%) and Odisha(22.1%). Of the total ST population in the country, Madhya Pradesh accounted for the highestproportion of ST population (14.5%) followed by Maharashtra (10.2%), Odisha (9.7%),Gujarat (8.9%), Rajasthan (8.4%), Jharkhand (8.4%) and Chhattisgarh (7.8%). In fact, 68% ofthe country’s ST population lives in these seven states.

Only 2.4% of the STs live in urban areas. e STs constitute 10.4 % of the total ruralpopulation. As of 2001, out of the total 5.94 lakh villages and 4,378 urban areas/towns in thecountry , 105,295 villages and 57 urban areas/towns had an ST population of more than 50%

while half of the villages and a quarter of the urban areas/towns did not have any ST populationat all.

e traditional areas of habitation of the STs have often been divided among states, which were formed primarily on the basis of the languages spoken by the mainstream caste society. Forinstance, Jharkhandis were divided amongst the states of Bihar, West Bengal, Madhya Pradeshand Odisha; the Bihar part of this territory has now been given separate state status with the name‘Jharkhand’. e Gond region has been divided amongst Odisha, Andhra, Maharashtra andMadhya Pradesh. Similarly, the Bhil region is divided amongst Maharashtra, Madhya Pradesh,Gujarat and Rajasthan. e Naga region is divided among Nagaland, Manipur, Assam and

Arunachal Pradesh. Further administrative sub-divisions within the states into districts, talukas14,panchayats15 and revenue villages (which are officially demarcated and therefore different from

the natural habitations or villages or hamlets) have only broken up and fragmented the tribalhabitations and reduced STs to minorities in many of them (the list of STs and the states and UTs

where they are scheduled provided in Annexure 5 indicates their distribution across adjoiningstates/UTs). Despite this, and the migration of non-STs into tribal areas, STs are found in 91.6%of all districts in the country with a majority in 13.8% of the districts and significant presence16 in 12% of the districts. ere are 75 districts with more than 50% ST population and another31 districts with between 30% and 50% ST population (See Annexure 6 for the list of these

13 Estimated at 300 million to 350 million. Accessible at http://en.wikipedia.org/wiki/Indigenous_peoples

14 Also known as tehsil, tahsil, tahasil, taluk, taluq, and mandal, these are administrative units (sub-districts) within each

district. There are 5,451 Talukas in the country as of 2001.

15 Panchayats or Gram panchayats are local governments set up in villages with minimum population of 300. Sometimestwo or more villages are clubbed together to form group-gram panchayat when the population of the individual villages is

less than 300. There were about 265,000 gram panchayats (2002 ). The gram panchayat is the foundation of the Panchayat

System. A Taluka is divided into a number of gram panchayats.

16 20-49.9% of population


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districts). ey are found in 46.5% of the villages of which they are in the majority in 38.1% anda significant presence in 16% of these villages. In urban areas/towns, STs are found in 75.1% ofthe urban areas with a majority in 1.7% and a significant presence in 4.9% (See Table 1 below)of urban areas.

TABLE 1: Percentage of Scheduled Tribe population in districts, villages, and Urban Areas /Towns

Proportion of ST population (%) Scheduled tribes

No. of Districts No. of villages No. of Urban Areas/towns

Nil 50* 323,487 1,090

Upto 4.9% 278 68,189 2,420

5.0%-9.9 56 23,742 387

10.0%-19.9% 69 28,662 26420.0%-49.9% 65 44,240 160

50.0%-74.9% 35 26,788 15

75.0% or above 40 78,507 42

Total 593 593,615 4,378

*No ST list applicable.Source: Primary Census Abstract, Census of India 200117

17 Accessible at http://censusindia.gov.in/Census_And_You/scheduled_castes_and_sceduled_tribes.aspx


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Socioeconomic Statuse Planning Commission of India observed in its Eleventh Five Year Plan 2007-1218 that ‘the

Scheduled Tribes are mainly landless poor forest dwellers and shifting cultivators, small farmersand pastoral and nomadic herders. 81.56% of the total ST workers, both rural and urban takentogether, are engaged in the primary sector, of whom 44.71% are cultivators as compared to31.65% of the general population, and 36.85% are agricultural labourers as compared to 26.55%of the general population. is indicates that STs are essentially dependent on agriculture. eincidence of poverty amongst STs still continues to be very high at 47.30% in rural areas and33.30% in urban areas, compared to 28.30% and 25.70% respectively in respect to the totalpopulation in 2004–0519. A large number of STs who are living below the poverty line arelandless, with no productive assets and with no access to sustainable employment and minimum

wages. e women belonging to these groups suffer even more because of the added disadvantageof being denied equal and minimum wages. As per the UNDP India Report 2007 on HumanPoverty and Socially Disadvantaged Groups in India, the HDI (Human Development Index) for

STs at the all-India level is estimated at 0.270, which is lower than the HDI of Scheduled Castes(SC) and non-SC/ST for the period 1980–2000. e HPI (Human Poverty Index) for STs isestimated at 47.79, which was higher than others for the period 1990–200020.

In the Eleventh Five Year Plan (2007-2012), the Planning Commission of India statedthat ‘despite some protective measures and developmental efforts, the emerging tribal scenariocharacteristically continues to manifest:

• increasing tribal alienation on account of slipping economic resources like land, forest,common property resources;

18 Inclusive Growth , Eleventh Five Year Plan 2007-12, Volume I, Planning Commission, Government of India, 2008.Accessible at http://planningcommission.gov.in/plans/planrel/veyr/welcome.html

19 It should be noted that the poverty lines on which these gures are based are highly controversial and most likely

constitute a gross underestimate of actual poverty, both among the general population and among STs.

20 Ibid.

Pardi tribal living in the streets of Mumbai Photo: Sarah Webster


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• displacement and dispossession of life-support systems;• general apathy of official machinery;• escalating atrocities, at times related to assertion of rights;• growing clout of market forces; and

• meager advancement through planned development efforts.21

Table 2 provides a list of indicators that are indicative of the status of STs as compared tothe general population. Except for sex ratio that signifies better status for ST women, all otherindicators indicate considerably lower levels of achievements. Even their higher land holdingsare not significant as their productivity is low being lands in the hill ranges. is confirmsthe discrimination that STs face in all sectors of development despite a plethora of positiveaffirmations and special provisions through policies, plans and laws.

TABLE 2: Status of Scheduled Tribes with respect to the general population: Some indicators22

Sl. No. Indicator Scheduled

Tribe

General

population

Sex ratio (2001) 978 933 (+)

Literacy rate (2001)Female literacy rateMale literacy rate

47.10%.34.76%59.17%

65.38%53.67%75.26%

(-)(-)(-)

Poverty (2004–05)RuralUrban

47.30%33.30%

28.30%25.70%

(-)(-)

Immunization 26% 42% (-)

Toilet Facility (2001) 17.0% 36.4% (-)

Safe Drinking Water (2001) 61.7% 79.2% (-)Electricity Connection (2001) 36.5% 61.4% (-)

Households without Electricity, Safe Drinking Water andToilet (1991)

45.30% 21.37 (-)

Permanent housing (2001) 24.4% 57.7% (-)

Drop out rates (2005-6)Primary I-V Boys GirlsElementary I-VIII Boys

GirlsSecondary I – X Boys GirlsGross Enrollment Ratio in higher education (2005-06)

39.83%40.31%39.26%62.95%62.76%

63.20%78.76%77.99%79.82%6.57

25.47%28.53%21.54%48.71%48.49%

48.98%61.59%60.04%63.56%11.0

(-)(-)(-)(-)(-)

(-)(-)(-)(-)(-)

21 Ibid, p.111.

22 Extracted from - Report of The Task Group on Development of Scheduled Castes and Scheduled Tribes on Selected

Agenda Items of The National Common Minimum Programme , Planning Commission, Government of India, March 2005.

Accessible at

http://planningcommission.gov.in/aboutus/taskforce/inter/inter_sts.pdfAbstract. Selected Educational Statistics (2005-06). Department of Higher Education, Ministry of Human Resource

Development, Government of India. Accessible at

http://www.educationforallinindia.com/SES2005-06.pdf

Higher Education. Accessible at http://www.knowledgecommission.gov.in/downloads/baseline/higher.pdf


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Sl. No. Indicator ScheduledTribe

Generalpopulation

Household by asset-holding categories (2003)Rural:

- Less. an Rs.30,000- Rs.300,000 and aboveUrban:- Less. an Rs.30,000- Rs.300,000 and above

23.5%

37.1%32.5%20.1%

9.1%

24.8%23.0%33.7%

(-)

(-)(-)(-)

Land owned (2003)Rural: - Average area (ha) owned per household (rural) - Average area (ha) owned per household (urban)

0.77 ha 0.15 ha

0.76 ha 0.13 ha

(+)(+)

Health and nutrition indicators (2005-06)Total Fertility Rate

Infant mortality per 1000 live birthsUnder-five mortality per 1000 live birthsChild mortality rate

3.06

62.195.735.8

2.85

57.074.318.4

(+)

(-)(-)(-)

Employment (2001)- Percentage of working population to total population- Percentage of main workers1 to total workers- Percentage of marginal workers to total workers

49.1%68.9%31.1%

39.1%77.8%22.2%

(+)(-)(+)

Occupation (2001)- Cultivators- Agricultural workers- Household industry - Other occupations

44.7%36.9%2.1%16.3%

31.7%26.5%4.2%37.6%

(+)(+)(-)(-)

3.2 Main human rights concerns

Scheduled Tribes face a wide variety of human rights violations. ese range from individualviolations of civil and political rights – such as killings and illegal detentions – to widespreadviolations of social, economic and political rights, including mass displacement and multipleforms of social discrimination. Many of these violations are not evident in the official statistics

which – for the same reasons of discrimination and lack of access that are part of the problem –usually fail to record more than a small fraction of the incidents that occur.

Key areas of rights violations include militarisation and state repression, forced displacement

and land alienation, violation of forest and resource rights, and atrocities/ discrimination. elatter three areas are dealt with in Part II in the discussions on resource rights and the right tonon-discrimination, respectively. However, the first area – militarisation – receives very littleattention in much of the literature and hence is discussed here separately.

Militarisation and State RepressionLarge parts of the areas inhabited by STs– such as the Northeast and the states of Jharkhand

and Chhattisgarh in Central India – are sites of intense violent conflict. In these areas, killings,abductions, illegal detentions, torture and sexual assault by the security forces are commonlyreported, with most of those affected being STs. Until 1987 in the northeastern states, particularlyNagaland, Mizoram, Tripura and Manipur,, heavy military deployment has been a feature of

everyday life for decades.It is in the Naga areas, with the longest running armed conflict in India, where prime examples

of abuses have taken place. e Armed Forces (Special Powers) Act (AFSPA), 1958, India’s most


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draconian anti-insurgency law, is an adaptation of British colonial law that was enforced in 1958in the Naga areas of Assam and Manipur. e Act provides sweeping powers to armed forcespersonnel to search and destroy habitations and houses, to detain people on suspicion and tokill with impunity. It also protects them from investigation and prosecution, which can onlytake place with permission from the central government. is autocratic law has since beenextended to most of the Northeast and also applied to the states of Jammu and Kashmir. econstitutionality of the law was upheld by a five-judge bench of the Supreme Court of India in a

case filed by a Naga human rights organisation, though the Court ordered certain safeguards tobe put in place (which have since largely been observed in the breach)23.

At the beginning of the armed conflict in the Naga areas, the Assam government, in additionto the use of the AFSPA, promulgated an ordinance to allow the requisitioning of the ‘services’ ofany man as a porter in case of ‘emergencies’. is was used to extract forced labour from Nagasfor the construction of military camps, carrying loads for the Army and collecting supplies etc.24

Military force was used against the Nagas and other indigenous communities. In 1963,the Indian government admitted that it had used Air Force bombers to attack Naga villages.In 1966, the present-day capital of Mizoram – the city of Aizawl – was briefly taken over byMizo National Front guerrillas. In the struggle that followed, the Indian Army resorted to aerial

bombing once again. Large scale displacement and destruction of livelihoods have also resultedfrom militarisation. In the Naga areas, huge areas of land have been taken over for Army bases

23 Naga People’s Movement for Human Rights vs. Union of India, judgment dated 11 November 1997, (1998) 2 SCC 109.

24 Luithui, Luingam and Nandita Haksar. Nagaland File: A Question of Human Rights , Lancer International, 1984.

A protest in Delhi on forest rights (Campaign for Survival and Dignity, 2006) Photo: Kai Vaara


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and military infrastructure. Villages have been destroyed by military action, in some cases as amethod of collective punishment. In both the Naga areas and in Mizoram, the Indian militaryenforced a policy of forced resettlement as part of its counter-insurgency campaign in the 1950’sand 1960’s, removing villagers from their homes and pushing them into camps and towns.25

Similar tactics are now being used in Central India in the areas where the armed Maoistguerilla organisations operate. In the State of Chhattisgarh, for instance, the National CrimeRecords Bureau reported that 138 people lost their lives when they were fired at by the policein 2006.26 In September and October 2009, sixteen people were allegedly killed by police in‘fake encounters’ (killings where the police claim to have fired in self-defense) in southernChhattisgarh.27 Moreover, the ‘salwa judum28’ militia in Dantewada in Chhattisgarh, a state-supported armed group has driven more than 400,000 people from their homes since 2005 andemptied 644 villages. Of those who have fled, most are surviving by hiding in the forest areas ofChhattisgarh and the neighbouring state of Andhra Pradesh (from where they are, in turn, facing

harassment from police and forest officials). Around 40,000 people are residing in ‘relief camps’set up by the government, which are heavily policed and surrounded by security forces, and wherethe living conditions are deplorable. In a public interest petition filed in 2007 before the SupremeCourt of India regarding the human rights violations being committed by the Salwa Judum andthe security forces in tribal areas of Chhattisgarh, the National Human Rights Commissionreported that several complaints of killings, gang rape and destruction of villages by the ‘Salwa

Judum’ and the security forces are credible, and that prosecution of the guilty is not taking

25 See for instance the chronology of the Naga history available at http://www.manipuronline.com/Manipur/December2002/

nagachronology2002.htm

26 Quoted in India Human Rights Report 2008, Chhattisgarh , Asian Centre for Human Rights. Accessible at http://www.achrweb.org/reports/india/AR08/chhattisgarh.html#_ftn8.

27 Fact nding report by PUCL (Chhattisgarh) , PUDR (Delhi), Vanvasi Chetna Ashram (Dantewada), Human Rights Law

Network (Chhattisgarh) , ActionAid (Odisha), Manna Adhikar (Malkangiri) and Zilla Adivasi Ekta Sangh (Malkangiri).

28 Meaning ‘Peace March’ in Gondi tribal language.

Naga Hills, Manipur Photo: NPMHR (2010)


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among Adivasis in these states. e state of Jharkhand in particular has a long history ofpeople’s struggles, mostly organised around the theme of self-government and autonomyfor the Adivasis of the area. e creation of the state of Jharkhand has, for the time being,led to the decline of many of these movements.

• e southern region, comprising of Tamil Nadu, Karnataka and Kerala. In Tamil Naduand Karnataka, the most widespread organisations are funded NGOs whose approachtends to be welfare and development-oriented. Some of these NGOs have adopted thelanguage of indigenous peoples’ rights over the past two decades. e practice of theseorganisations, however, tends to avoid political mobilisation and confrontation with theState. Kerala is an exception to this trend, with much fewer NGOs and instead a muchlarger presence of people’s organisations (described above). e situation in the easternstate of Odisha, meanwhile, resembles that of Tamil Nadu or Karnataka, though with agrowing presence of the CPI (Maoist) in the western districts of the state.

• e Northeastern region, including the seven states of India’s northeast. In these

states, multiple organisational forms coexist among the indigenous population: armednational liberation organisations, mass based membership organisations (which usuallydescribe themselves as civil society groups), such as the powerful student unions, andtraditional community organisations / governance institutions. ese tend to operatein general coordination with one another, though they may have other differences. Itis in the Northeast that the concepts and discourse of indigenous people’s rights aremost widespread, particularly among communities such as the Nagas. In recent times,organizations have also emerged against various ‘development’ projects such as dams etc.Other parts of the country such as Gujarat, West Bengal, Himachal Pradesh etc. tend to

follow one or the other pattern of those listed above.

At the national level, as discussed in the section on post-colonial history above, there is as yetno nationwide Adivasi political formation or organisation. ere are a number of coalitions andalliances, mostly people’s movements and activist NGOs, which have formed at various times totake up specific issues (among them ‘self-rule’ [i.e. autonomy], forest rights, displacement, etc.).ese coalitions have however tended to be transient in nature. ere are also a few donor-drivenand dependent NGO networks which are largely project and event oriented.

In addition, a different group of organisations – the ‘Sangh Parivar ’, or family of organisationsaffiliated to the Rashtriya Swayamsevak Sangh 31 – also has a widespread presence across centralIndia as well as in many of the other Adivasi regions of the mainland (and parts of the Northeast,such as Arunachal Pradesh). ese organisations mobolise around the theme of a ‘Hindu rashtra’(or Hindu nation) and are strongly opposed both to religious minorities (such as Muslims and

Christians) as well as any movement or ideology that they see as threatening the dominanceof an upper caste, autocratic definition of ‘Hinduism’. In this view, indigenous rights and theconcept of indigenous peoples are a threat to national integrity. Hence, these organisations haverepeatedly sought, often with the assistance of state authorities, to crush struggles that implicitly orexplicitly talk of indigenous peoples’ rights. ey have even opposed the term ‘Adivasi’ (meaningfirst dweller), favouring instead their own term ‘vanvasi ’ (meaning forest dweller).

31 Referred to variously as a Hindu supremacist, Hindu nationalist and Hindu fascist organization; see for instance http://

en.wikipedia.org/wiki/Rashtriya_Swayamsevak_Sangh#cite_note-Atkins2004-3


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the states of Assam, Manipur, Meghalaya, Nagaland, Tripura, Mizoram and Arunachal Pradesh.States which are geographically spread out also have one or more additional benches of the HighCourt located in different parts of the state, but functioning as one unit. Each High Court has aChief Justice and such other judges appointed by the President of India from time to time. High

Courts have appellate and original jurisdiction, primarily over disputes which are located withinthe geographical area of that particular state. Every High Court is a court of record (i.e. it canpunish for contempt of itself), and the official language is English.

Like the Supreme Court, the High Courts also have original jurisdiction to entertain writpetitions regarding violations of fundamental rights, and can issue writs in the nature of habeascorpus, mandamus, certiorari, quo warranto and prohibition for the enforcement of these rights,and also direct redressal.

e Subordinate Courts function under the supervision of the concerned High Court.District level judges are appointed by the Governor in consultation with the High Court, while

judicial officers below the rank of District Judges are appointed by the Governor in consultation

with the Public Services Commission. Usually, the subordinate judges are allocated separately tothe Civil or the Criminal side. Civil Judges and Small Cause Courts form the lowest rung of the

judiciary on the civil side, while Judicial Magistrates/Metropolitan Magistrates form the lowestrung of the judiciary on the criminal side. At the next level are the Additional District Judges onthe civil side, and the Additional Sessions Judges on the criminal side.

4.1.3 Nyaya Panchayats

e Nyaya Panchayats are the judicial component of the local governance system. ey arethe lowest rung of the judiciary, created for the purpose of dispensation of justice at the rurallevel. While several of the State legislations relating to Panchayat Raj institutions make provision

for the appointment of Nyaya Panchayats at the village panchayat (i.e. local council) level, withlimited civil as well as criminal jurisdictions, only a few states had actually set them up.37 Inrecent years, there has been a renewed interest in setting up these village level judicial bodies.However, most of the states in the Northeast do not have provisions for Nyaya Panchayats,including Nagaland.

4.1.4 Human Rights Courts

e Protection of Human Rights Act 1993 (PHR Act), provides for the setting up of HumanRights Courts in each district ‘for the purpose of providing speedy trial of offences arising out ofviolation of human rights’38. It also provides for the appointment of a Special Public Prosecutor forthe purpose of conducting cases in this Court.39 Apart from these two rather cryptic provisions,there are no rules or guidelines which amplify the meaning, function, and other jurisdictionalissues related to such courts, nor is the establishment of these courts mandatory. erefore,the setting up of such courts has been very slow. Such courts have been notified in the Statesof Andhra Pradesh, Assam, Sikkim, Tamil Nadu, Uttar Pradesh, Madhya Pradesh, Meghalaya,Himachal Pradesh, Goa and Tripura, but have actually been established only in Chennai (TamilNadu) and Guwahati (Assam).

e intention of the legislature to set up specialized courts to deal with criminal prosecutionof perpetrators of human rights violations is no doubt significant for tribals in India given the

37 See Ashok Mehta Committee report or Report of the Committee on Panchayat Raj Institutions 1978 which stated that

at that time Nyaya panchayat were operational in 8 States – Bihar, Gujarat, Jammu & Kashmir, Manipur, Rajasthan, Tripura,Uttar Pradesh and West Bengal. In 3 States – Haryana, Himachal Pradesh and Punjab – the village Panchayats have also

been vested with judicial powers.

38 Section 30 of Protection of Human Rights Act 1993.

39 Section 31 of Protection of Human Rights Act 1993.


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widespread nature of such abuses in tribal areas. e relevance of such Human Rights Courtsconstituted under the PHR Act remains to be seen, which defines the term ‘human rights’ in thenarrowest possible terms (see section 4.5 below), and further excludes human rights violationsby the armed forces, including paramilitary forces of the Union government, from the purview

of the Act.Be that as it may, the reality is that discriminatory attitudes against STs in Indian society

are reflected to a greater and lesser degree in the judicial system also at all levels. ere is littlecomprehension, let alone understanding, of the customary practices, history, concerns andperspectives of STs within the judicial system. Far greater than special human rights courts,therefore, is the need to educate and sensitise the mainstream legal system at all levels to the needsand aspirations of the STs.

4.1.5 Customary dispute settlement mechanisms

Historically, tribal communities across the country have had mechanisms for settlement of

disputes within and across communities, which have evolved in different forms depending on thenature of issues which they have been called upon to address. e colonial period saw a declinein the strength of these mechanisms as they were sought to be replaced by a judicial system moresuited to the needs of the colonial government. As a result, these traditional mechanisms wereneither nurtured by state administration, nor their decisions recognised as valid by the judicialsystem.

One exception to this rule is the state of Nagaland, which continues to have robust andcontinuously evolving customary dispute settlement mechanisms which run parallel to themainstream legal system. ese mechanisms are recognised under the provisions of Article 371 Aof the Constitution, which protects ‘Naga customary law and procedure’. Accordingly, the state

of Nagaland has set up District Customary Courts in every district having both civil and criminal jurisdiction, alongside the mainstream judicial systems. e people have the option of going tothe customary court or the state court. e judge in the customary court is known as Doobashis,and depending on the number of households, there could be one or more Doobashis for eachvillage. A person wishing to have his/her dispute decided by the District Customary Court makesan application before the Deputy Commissioner of the District who then forwards it to theCustomary Court. Apart from deciding cases on the basis of customary law, the customary courtalso follows procedures which are based on customary practices. e decisions of the CustomaryCourt are legally recognised and therefore all consequences from a decision of a mainstreamcourt also flow from the decision of the customary court.

However, in other tribal areas there is no legal recognition of the traditional dispute settlementmechanisms though these may be strong and have social acceptance. One such example is theDevta system, practiced in tribal areas of Himachal Pradesh. e Devtas are local deities or spirits

which have traditionally demarcated geographical areas of jurisdiction, usually a cluster of villages.e villagers approach the devta for assistance in all manner of circumstances, from marriageproposals, to healing of illnesses, to resource sharing methods for extraction of medicinal herbs,and protection of forests. Dispute settlement is but one of the functions the devta performs.Usually, the devta communicates his decisions to the community through a medium or oracle,and in many areas it is believed that disobedience will result in ill fortune. In recent years, the roleof the devtas has become increasingly important as local communities have chosen to follow the‘decision’ of the devta with respect to issues of environmental conservation and resource use, such

as harvesting of minor forest produce and setting up of industrial projects, in defiant oppositionto the directives of the State administration.40 In Jharkhand, the Adivasis continue with their

40 Thankur, Molu Ram. Myths, Rituals, and Beliefs in Himachal Pradesh, M.L. Indus Publishing House, New Delhi, 1997,


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traditional systems such as Manki-Munda and Disum Parganah though considerably weakened.Similarly, many tribal areas have traditional mechanisms for the settlement of disputes which

remain unrecognized by the mainstream legal system but nevertheless continue to have social

acceptance.

4.2 Constitutional Safeguards

As many as 209 Articles and 2 special schedules of the Constitution of India are directlyrelevant to STs. Table 3 below summarises some of these provisions.

TABLE: 3 Constitutional provisions relevant to Scheduled Tribes

Provision Summary

i) Social

Article 14 Equality before Law

Article 15 Prohibits discrimination on grounds of religion, race, caste, sex or place of birth

Article 15 (4) e State is to make special provisions for the advancement of any socially andeducationally backward classes of citizens or for (the Scheduled Castes) and the STs

Article 16 Equality of opportunity for all citizens in matters relating to employment orappointment to any office under the State

Article 16 (4) e State to make provisions for reservation in appointment, posts in favour of anybackward class citizens, which in the opinion of the State is not adequately representedin the services under the State

Article 16 (4A) e State to make provisions in matters of promotion to any class or classes of posts inthe services in favour of (the Scheduled Castes and) the STs

Articles 25-28 Freedom of religion Articles 29-30 Freedom to culture and education

Article 338 A A National Commission for Scheduled Tribes to investigate, monitor and evaluate allmatters relating to the Constitutional safeguards provided for the STs

Article 339 (1) Appointment of a Commission to report on the administration of the Scheduled Areasand the welfare of the STs in the states

Article 340 Appointment of a Commission to investigate the conditions of socially andeducationally backward classes and the difficulties under which they labour and to makerecommendations to remove such difficulties and to improve their conditions

Article 342 To specify the tribes or tribal communities to be Scheduled Tribes

ii) Economic

Article 46 e State, to promote with special care the educational and economic interests of the weaker sections of the people, and in particular of (the Scheduled Castes and) the STs,and protect them from social injustice and all forms of exploitation

Article 275(1) Grants-in-Aid to be made available from the Consolidated Fund of India each year forpromoting the welfare of the STs and administration of Scheduled Areas

Article 335 e claims of the members of (the Scheduled Castes and) the STs in the appointmentsto services and posts in connection with the affairs of the Union or of a State to be takeninto consideration consistent with the maintenance of efficiency of administration

iii) Political

Article 330 Reservation of seats for (the Scheduled Castes and) the STs in the House of the People

pp.130-7.


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Provision Summary

Article 332 Reservation of seats for (the Scheduled Castes and) the STs in the Legislative Assembliesof the States

Article 243D Reservation of seats for (the Scheduled Castes and) the STs in every Panchayat Article 243T Reservation of seats for (the Scheduled Castes and) the STs in every Municipality

Article 243M(4)(b) Extension of the Part IX- e Panchayats- to the Scheduled Areas through a law enactedby Parliament. is has been done by the Panchayats (Extension to the Scheduled Areas)

Act, 1996.2

Article 243ZC (3) Extension of the Part IX-A- e Municipalities- to the Scheduled Areas through a lawenacted by Parliament. No such law has been enacted to date.

Article 244 e administration of Scheduled Areas and STs to be governed by the Fifth Schedule,and that of tribal areas in Assam, Meghalaya, Tripura and Mizoram to be governed bythe Sixth Schedule (for further detail see section on Self Management in Part II)

Article 371 A Special status to the State of Nagaland

Article 371 B Special provisions for the State of Assam

Article 371 C Special provisions for the State of Manipur

Article 371 F Special provisions for the State of Sikkim

Article 371 G Special provisions for the State of Mizoram

Article 371 H Special provisions for the State of Arunachal Pradesh

Fifth Schedule Provisions as to the Administration and Control of Scheduled Areas and STs

Sixth Schedule Provisions as to the Administration of Tribal Areas in the States of Assam, Meghalaya,Tripura and Mizoram

4.3 Legislative SafeguardsFrom the Constitutional mandate, there are a number of legislative safeguards in the form of

special laws, Rules, notifications, both at the central and at the state levels. Table 4 below gives arepresentative list of these laws.

TABLE 4: Legislative safeguards for Scheduled Tribes

Legislative Safeguards

Protection of Civil Rights Act. 1976 is central statute prohibits the practice of untouchabilityand cites instances of such practice liable for prosecution ascriminal offences.

e Scheduled Castes and the STs (Preventionof Atrocities) Act, 1989

is Central statute is aimed at checking and deterringatrocities against STs (and Scheduled Castes)

e STs and Other Traditional Forest Dwellers(Recognition of Rights) Act, 2006

A recently enacted Central law concerning the rights of STsand other forest dwellers over forests and forest resources.

Odisha Scheduled Areas Transfer of ImmovableProperty (by STs) Regulation, 1956

Enacted by the Odisha State legislature, this Regulationprohibits the transfer of immovable property from tribals tonon-tribals in the State of Odisha, and provides mechanismsfor restoration of land so alienated. Similar legislations are inplace in other states as well. (See Annexure 10 )

Odisha Land Reforms Act, 1960 is state level statute applies to land rights across Odisha’sentire population; it is important because it also contains

provisions regulating the transfer of land from tribals tonon-tribals in non-Scheduled Areas. Most states have similarprovisions in their revenue laws.


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Odisha (Scheduled Areas) Debt ReliefRegulation, 1967 and Odisha Scheduled AreasMoneylenders Regulation, 1967

Enacted by the Odisha State legislature, these regulationsprovide relief to STs from indebtedness, the control of moneylending, and for the setting up of Debt Relief Courts.

Odisha Government Land Settlement Act,

1962

Although this state level statute contains a specific provision

which overrides ‘custom, practice or usage having the forceof law’, it has been an important tool for regularisation andsettlement of lands among tribals in Odisha.

Odisha Gram Panchayats (Minor ForestProduce Administration) Rules, 2002

ese Rules give primacy to the Gram Panchayat in theprocurement and trading of 67 items of minor forestproduce, whether produced in government lands and forestareas within the limits of the village or collected from thereserved forests and brought into the village.

Odisha Protection of Scheduled Castes andScheduled Tribes (Interest in Trees) Act, 1981

is State level legislation forbids any person from enteringinto contracts with persons who are SC/STs for the sale oftimber of specified trees unless previous written permission of

the Range Officer has been obtained.Odisha Communal Forest and Private Lands(Prohibition of Alienation) Act, 1948

is rather outdated and little used state legislation claims toprevent the alienation of communal lands and private landsover which village communities have usufructuary rights. Itssignificance lies in the fact that it covers not only land whichis actually owned by communities, but also land which maybe privately owned but over which communities have rightsof user. Government forest land, however, is not covered.3

Panchayati Raj legislations In pursuance of the enactment of PESA, State Governmentsacross the country have amended the state level PanchayatiRaj legislations to make special provisions for panchayatsin Scheduled Areas. A complete list of these provisions is

beyond the scope of this report.Nagaland Village and Area Council Act, 1978 is is a state level legislation which gives statutory

recognition to traditional Village Councils in the governancesystem.

Nagaland Communitisation of PublicInstitutions and Services Act, 2002

A State level legislation which enables the community toparticipate in the management and development of publicinstitutions as their own. Rules have been framed under thislaw for bringing under its purview elementary education,grassroot health services and electricity management.

Nagaland Jhumland Act, 1970 A state level legislation enacted to safeguard and regulate therights to jhum land, or lands on which shifting cultivation is

traditionally practiced.Chottanagpur Tenancy Act, 1908 is legislation was enacted subsequent to the tribal rebellion

led by Birsa Munda in the Chotta Nagpur area, in order toprevent transfer of Adivasi land to the non-Adivasis. It iscurrently applicable in the state of Jharkhand.

Santhal Parganas Tenancy Act, 1949 A powerful legislation giving legal recognition and supremacyto the customary laws of the Adivasis in the Santhal Parganasregion of Jharkhand, the applicability of this law has beenconsiderably weakened by recent adverse judgments of the

Jharkhand High Court.


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4.4 Key Institutional Structures Relating to Scheduled Tribes

Both the central and the State Governments in India have a variety of agencies and governmentdepartments intended to address issues relating to STs.

4.4.1 Central Government

Ministry of Tribal AffairsConstituted in 1999, the Ministry of Tribal Affairs is a relatively new Ministry. It has the

objective of ‘providing more focused attention on the integrated socio-economic development ofthe most under-privileged sections of the Indian society namely, the STs, in a coordinated andplanned manner’. It therefore has responsibility for overall policy, planning and coordination ofpr